IN TI-IE SUPREME COURT OF OHIO GREGORY D. EMMONS' MEMORANDUM IN SUPPORT OF JURISDICTION

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1 IN TI-IE SUPREME COURT OF OHIO STATE OF OHIO Plaintiff-Appellee, vs. GREGORY D. EMMONS, Defendant-Appellant. ) ) ) ) ) ) ) ) ) CASE NO.:.., On Appeal from the Court of Appeals for Ashland County, Ohio, Fifth Appellate District, Case No. 14-COA-016,>r GREGORY D. EMMONS' MEMORANDUM IN SUPPORT OF JURISDICTION ANDREW N. BUSH Assistant Law Director and Prosecutor Ashland Law Department 1213 East Main Street Ashland, Ohio (419) (419) (Fax) Sup. Ct. Reg. No andrew^?a andrewbushlaw.com Attorney for Appellee, State of Ohio BRENT L. ENGLISH LAW OFFICES OF BRENT L. ENGLISH The 820 Building 820 Superior Avenue West, 9th Floor (216) (216) 78I-8113 (Fax) Sup. Ct. Reg. No benglish..@englishlaw.com Attorney foy Appellant, Gregory D. Emmons t 3 $^ $ rr ^.f ^ } f' ftd y} ^ '^c5+._.. J^^.'K"tr@rf r ' r s^s.r^ 3^'0.,,. ' ^ J c 5,^;. ^ rrd:./ D

2 TABLE OF CONTENTS STATEMENT OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST...1 COMBINED STATEMENT OF THE CASE AND FACTS HGN..._...,..., WALK-AND-TURN STANDING ON ONE LEG...5 ARGUMENT IN SIJPPORT OF PROI'OSITION OF LAW...6 PROPOSITION OF LAW NO. 1: Failure to substantially comply with the timing requirements of the NHTSA field sobriety test for horizontal gaze nvstagmus renders the test result inadmissible unless the State shows that the failure did not affect the reliability of the result...6 PROPOSITION OF LAW NO. 2: Probable cause to believe that a driver is under the influence of alcohol is not shown when the field sobriety tests were not conducted in substantial compliance with the NHTSA manual and where there is insufficient other evidence from which a reasonable person could conclude the driver was operating the vehicle under the influence...10 CONCLUSION...11 CERTIFICATE OF SERVICE...12 APPENDIX Judgment Entry of the Court of Appeals for Ashland County, Ohio, Fifth Appellate District affirming the judgment of the trial court, entered in Court of Appeals Case No. 14-COA-016 journalized on December 31, Opinion of the Court of Appeals for Ashland County, Ohio, Fifth Appellate District affirming the judgment of the trial court, entered in Court of Appeals Case No. 14-COA- 016 journalized on December 31,

3 STATEMENT OF WHY 'THIS IS A CASE OF PUBLIC AND GREAT GENERAL INTEREST This case presents an opportunity for this Court to delineate what "substantial compliance" with standardized field sobriety tests means. Since the General Assembly legislatively overruled this Court's decision in State v. Homan, 89 Ohio St.3d 421, 2000-Ohio- 212, 732 N.E.2d 952 (2000) requiring strict compliance with such standardized tests, the "substantial compliance" standard established in R.C (D)(4)(b) has been the subject of many interpretations. This Court has held these test results are admissible without expert testimony as long as the officer who performed the tests is properly trained "and the actual technique used by the officer in administering the test" substantially complies with the standardized tests. State v. Boczar, 113 Ohio St. 3d 148, 2007-Ohio-1251, 863 N.E. 2d 155. In this case, the police officer who administered the tests admitted that he did not comply with the National Highway Traffic Safety Manual in multiple ways. However, the Court of Appeals excused his failures, reasoning that time was not important and that he therefore "substantially complied" with the standardized tests. Substantial compliance allows "minor procedural deviations that... in no way affected the ultimate results." Homan, 89 Ohio St.3d at 426. It should be clear that ignoring the time requirements of the NHTSA manual is not a "minor procedural deviation" particularly when the manual itself requires strict adherence. By finding that the "procedural deviations" in this case were mere trivialities, the Court of Appeals has regrettably stretched the substantial compliance standard beyond any permissible limit. Accordingiy, this Court should accept this case for review and delineate whether such violations vitiate a finding of substantial compliance such that the test results are admissible.

4 COMBINED STATEMENT OF THE CASE AND FACTS On September 2, 2013, Gregoiy D. Emmons was charged with operating a motor vehicle while under the influence of alcohol (OVI) in violation of R.C. 4511,19(A)(1)(a). He filed a motion to suppress all evidence against him, inter alia, on the grounds the state trooper who made the traffic stop and arrest did not have probable cause to charge him with the offense. He specifically challenged the arresting officer's substantial compliance with three standardized field sobriety tests contained in the 2006 edition of the National Highway Traffic Safety Manual for Standardized Field Sobriety Tests ("NHTSA manual."). These purported test results were the primary basis for the arrest. The Ashland Municipal Court conducted a hearing on the inotion to suppress over two days. On March 21, 2014, the trial court denied the motion. Appellant then entered a plea of no contest and was found guilty. Appellant appealed to the Court of Appeals for the Fifth Appellate District, Ashland County, Ohio. On December 31, 2014 the court affirmed the trial court's judgment. The alleged offense occurred outside of the Village of Savanah in Ashland County, Ohio. On Sunday morning at about 9:00 a.m., Appellant was driving his vehicle south on U.S. 250 just outside the village. A state trooper was northbound on U.S. 250 and was just leaving the village. The trooper claimed that Appellant was exceeding the speed limit by nine miles per hour before he entered the village. As Appellant entered the village, however, he slowed down to the speed limit and committed no other traffic violation. The trooper turned around, caught up to Appellant's vehicle, and, after following him for a ways, pulled him over solely for the alleged speeding offense. The trooper's cruiser was -2-

5 equipped with a dash camera video ("dash cam video") on which the traffic stop and the field sobriety tests were clearly recorded. The trooper approached Appellant's vehicle and asked him for his driver's license, registration, and proof of insurance. Appellant produced a valid driver's license, the vehicle registration and proof of insurance. The trooper claims to have perceived a "slight smell of an alcoholic beverage in the vehicle." He also noted that Appellant was wearing sunglasses which he found "kind of odd" because it was a relatively overcast morning. As Appellant reached into the glove box to retrieve the documents the trooper requested, the trooper said he saw (from the corner of the glasses) that Appellant's eyes were allegedly "very bloodshot." Nevertheless, the trooper acknowledged Appellant had no problem getting out of his vehicle: he did not stumble, fall, was not unsteady, and needed no help. Appellant complied with the trooper's directive to put his hands on the cruiser. Although the discussion is not audible on the video recording, the trooper testified that Appellant denied consuming any alcohol that day but admitted consuming "approximately six beers" the previous evening, ending at 2:00 a.m. The trooper agreed that he merely presumed that Appellant had "continuously consumed" beer up until 2:00 a.m. The trooper asked Appellant to perform a"battery of tests" including the horizontal gaze nystagmus test (HGN), the "walk and turn divided attention skills test," and the "one-leg stand." While he claimed to have administered the tests in accordance with the NHTSA main2al, the evidence showed he substantially deviated from its requirements. 1. HGN The trooper testified that the goal of the HGN test is to "pretty much looking for... involuntary jerking of the eyes." The trooper directed Appellant to put his feet together and keep -.^-

6 his hands at his side. He then directed him to follow a pen with his eyes, without moving his head. The trooper first checked for equal pupil size followed by checking for equal tracking in both eyes. He concluded Appellant's pupils were equal in size and that that he was "able to follow the stimulus with both eyes equally." The NHTSA manual required the trooper to check "smooth pursuit" by moving the pen two seconds out and two seconds back in each eye. The trooper admitted that the timing of this test was "critically important." (Tr. II, p. 19.) He accepted he had a duty to "substantially comply" with the NHTSA manual in order for the evidence to be admissible. The dash carnera video shows that he performed this aspect of the HGN test much faster than the manual provides. The trooper conceded this was true. The trooper next checked for distinct and sustained nystagmus in the right and left eyes. The NHI'SA manual required him to hold the stimulus at the edge of Appellant' field of vision for "at least four seconds" and a "minimum of four seconds." He confirmed he was required to "verify" that distinct and sustained nystagmus was present. The dash cam video shows the trooper made four passes (two in each eye), but never once held the stimulus for the required four seconds. The trooper next checked for the onset of nystagmus prior to 45 degrees. The NHTSA manual required him to move the stimulus so that it takes approxirnately four seconds to reach the 45 degree angle from the center of Appellant's face. The video shows, and the trooper conceded, that it took him a full seven seconds per eye to reach 45 degrees in each eye. -4-

7 2. WALK-AND-TURN The second test involved asking Appellant to "imagine" a line, put his right foot on the line with his left foot behind the right, and maintain that position with his hands at his side while Bishop gave him the remainder of the instructions. Appellant was directed him to take nine heelto-toe steps down the imaginary line, turn and "pivot" to the left on his front foot taking a series of small steps, and then return the same number of steps, counting out loud every step he took. While the trooper said he demonstrated this test to Appellant, this is not visible on the recording. Appellant performed this test without difficulty. The trooper conceded Appellant took (and counted out loud) nine heel-to-toe steps and walked back heel-to-toe as instructed. Moreover, he did not sway, lose his balance or have any other difficulty performing the test. However, because he turned to the right, rather than the left, and pivoted without taking a series of small steps, the trooper found one (out of eight) "clues" of impairment. The trooper conceded the NHTSA manual requires two or more clues of impairment in order for the subject to fail this test. 3. STANDING ON ONE LEG. Appellant performed this test perfectly (there were "[n]o clues observed on that test..."). Appellant did not sway, lose his balance, or move in any direction. The claimed probable cause was the "moderate odor of alcohol about his breath," his allegedly bloodshot eyes, and the results of the disputed HGN tests. -5-

8 ARGUMENT IN SUPPORT OF PROPOSITION OF LAW Proposition of Law No. 1: Failure to substantially comply with the timing requirements of the NHTSA field sobriety test for horizontal gaze nystagmus renders the test result inadmissible unless the State shows that the failure did not affect the reliability of the result. A warrantless arrest is constitutionally valid if "[a]t the moment the arrest was made, the officers had probable cause to make it-whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the... [individual] had committed or was committing an offense." State v. Heston, 29 Ohio St.2d 152, , 280 N.E.2d 376 (1972), quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142(1964). The "principal components of a determination of reasonable suspicion or probable cause will be the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause." Ornelas, supra, at 696. A police officer may draw inferences based on his own experience in deciding whether probable cause exists. United States v. Ortiz, 422 U.S. 891, 897, 95 S.Ct. 2585, 2589, 45 L.Ed.2d 623(1975), Here, the determination of probable cause to arrest was premised on the results of the field sobriety tests. We accept that even where field sobriety test results are excluded, an arresting officer's testimony about the defendant's performance during the administration of the excluded tests is admissible for the purpose of determining probable cause under the totality of the circumstances approach. State v. Schmitt, 101 Ohio St.3d 79, 801 N.E.2d 446, 2004-Ohio-37, at 15. The only evidence against Mr. Emmons other than the results of the field sobriety tests was that a slight" odor of alcohol was perceived by the officer and "bloodshot" eyes were observed from the edge of Appellant's glasses. There was no evidence of poor driving, -6-

9 commission of multiple traffic offenses such as weaving or reckless operation, slurred speech, a flushed face, open containers, or any problem exiting the vehicle and listening to the officer. Unquestionably, the purported results of the field sobriety test results were the key component of the evidence. There can be no doubt that the prosecution had the burden to prove by clear and convincing evidence that the three field sobriety tests were administered in substantial compliance with the standardized testing procedures established by NHTSA. R.C (D)(4)(b); State v. Schmitt, supra at T 9.1 "Clear and convincing evidence" is "[t]he measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal." In re. Estate of Haynes, 25 Ohio St.3d 101, , 495 N.E.2d 23 (1986); See, also, Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954). R.C (I))(4)(b) does not define "substantial compliance" regarding field sobriety tests. State v. Robinson, 1.60 Ohio App. 3d 820, 2006-Ohio-2280, 828 N.E. 2d 1040 (5th Dist. 2005) ("[R.C (D)(4)(b)] does not attempt to define `substantial compliance.' Thus, it will remain the province of the courts to determine whether the standard was met on a case-bycase basis.") In. State v. Perry, 129 Ohio Misc. 2d 61, 2004-Ohio-7332, 822 N.E.2d 862 (M.C.), the court held that the state must show clear and convincing evidence that a deviation in method '. Under Schmitt, supra, a trial court may properly permit an officer's recollection. as to his or her lay observations of the driver's capabilities on the "non-scientific" portion of field sobriety testing, even if the technical results are based on testing which falls short of substantial compliance with NHTSA standards. 7-

10 of administering field sobriety tests would not compromise the test's reliability. Ti, 29 (Emphasis provided.) 2 The trooper admitted that the amount of time used to check for horizontal gaze nystagmus was "critically important." He also conceded he had a duty to "substantially comply" with the NHTSA manual in order for the evidence to be adinissib]e. Despite these admissions, the record shows the officer did not come close to complying with NHTSA's requirements for administering this test. The NHTSA manual contemplates eight passages of at least two second each (not counting stop time in the middle) in checking for the ability of the eyes to smoothly pursue the stimulus. Thus, the minimum time for doing this test properly should be 16 seconds. In this case, the trooper did the test in just 11 seconds. Moreover, the manual requires that the stimulus be held "as far to the side as possible" for aininimum of four seconds in order to accurately determine if there is distinct and sustained nystagmus. This test is to be performed in each eye twice. Based upon the manual, the minim-um amount of time this test should have taken was 30 seconds. 'The video recording shows the test was performed in 23 seconds. Worse yet, the trooper never held the stinrulus for four seconds when he performed the test on either eye. The first time the trooper checked Mr. Emmons' right eye, the stimulus was held for only two seconds. The opposite problem occurred with respect to checking for the onset of nystagmus at less than 45 degrees. The NHTSA manual requires that the observer move `"Ironically, when a law enforcement officer trained and experienced in conducting the tests commits some small deviation from the standards, it is referred to as `substantial compliance.' However, when the accused deviates in performing a test with which he likely has little familiarity, it is called a`clue. "' J. Weiler and K. Weiler, Ohio Driving Under the Influence Law, 7:16 ( S Ed.). -8-

11 the stimulus at a speed that would take "approximately" four seconds to reach the edge of the suspect's shoulder. The observer is required to stop when he or she sees nystagmus and "verify that the jerking continues." The other eye is then to be checked in the same way. If nystagmus is seen, the observer must "check to see that some white of the eye is still showing on the side closes to the ear, and, if no white is showing, you have either taken the eye too far (more than 45 degrees) or the person has unusual eyes that will not deviate very far to the side." Here, the trooper took seven seconds to move the stimulus in each eye all four times. Further, he never stopped to verify nystagmus, or that he could see white in Appellant's eye when he allegedly saw nystagmus. In State v. Embry, 12th Dist. No. CA , 2004-Ohio-6324, 2004 WL the court held that "substantial compliance" with the HGN test described in the NHTSA manual was not shown for much the same reason as it was not shown here: The NHTSA guidelines list certain approximate and minimum time requirements for the various portions of the three phases of the exam. For instance, when checking for distinct nystagmus at maximum deviation, the examiner must hold the stimulus at maximum deviation for a minimunl of four seconds. When checking for smooth pursuit, the time to complete the tracking of one eye should take approximately four seconds. When checking for the onset of nystagmus prior to 45 degrees, the time for tracking left to right should also be approximately four seconds. The guidelines do not state a total minimum amount of time required for properly conducting all three phases of the exam. However, appellee was able to demonstrate at the hearing that the total amount of time Trooper Staples used to conduct the HGN test was significantly less than the NHTSA guidelines would appear to allow. During the cross-examination of Trooper Staples, appellee added up all the approximate and minimum times called-for in the guidelines. He then compared that total time to the total time that elapsed on the video that recorded appellee performing the HGN test. A comparison of the two total times revealed that the total time Trooper Staples used to conduct the HGN test on appellee fell significantly short of the total of all the time requirements listed in the guidelines. -9-

12 Id. at^, In this case, we find that these deficiencies in the administration of the HGN test amount to a lack of substantial compliance with the NHTSA guidelines. The state's second assignment of error is therefore overruled. Based on the foregoing, it is not arguable that the Trial Court erred in not suppressing the HGN test result and that the Court of Appeals erred in affirming that decision. Proposition of Law No. 2: Probable cause to believe that a driver is under the influence of alcohol is not shown when the field sobriety tests were not conducted in substantial compliance with the NHTSA manual and where there is insufficient other evidence from which a reasonable person could conclude the driver was operating the vehicle under the influence. As noted above, the HGN test was not conducted in substantial compliance with the NHTSA manual and thus was inadmissible. The other two field sobriety tests did not yield sufficient "clues" on which to conclude Appellant was operating a vehicle while under the influence of alcohol. The trooper testified he saw one "clue" on the walk-andturn test and no clues at all on the one-leg stand test. The NHTSA manual spells out eight clues of impairment on the walk-and-turn test: (1) cannot keep balance while listening to the instructions; (2) starts before the instructions are finished; (3) stops while walking; (4) does not touch heel-to-toe; (5) steps off the line; (6) uses arms to balance; (7) improper turn; and (8) incorrect number of steps 'I'he only one of these clues which the trooper said he saw was that Appellant pivoted as he turned rather than taking a series of small steps. According to the NHTSA manual, at least two clues of impairment on this test a.re required before finding that the subject failed the test. -10-

13 The trooper conceded Appellant perfornied the one-legged stand test flawlessly. The clues set forth in the NHTSA manual for this test include: (1) sways while balancing; (2) uses arms for balance; (3) hopping; and (4) puts foot down. Two or more clues are necessary to "accurately classify" a person as being under the influence of alcohol. With the discredited HGN test result not included, the only evidence of possible impairment by alcohol was the trooper's perception of "slight odor of alcohol" and his observation that Appellant's eyes were "bloodshot" when seen from the side. Combined, this evidence does not establish probable cause to arrest. CONCLUSION The decision of the Court of Appeals that the HGN test was performed in "substantial compliance" with the NHTSA manual and that the result, together with the other facts set forth above, established probable cause to arrest is seriously misguided. For the reasons set forth above, this case involves a matter ofpublic and great general interest. Appellant requests that this court accept jurisdiction so that the important issues presented will be reviewed on the merits. Respectfully submitted, NT^. GLISH LAW OFFICES OF BRENT L. ENGLISH The 820 Building 820 Superior Avenue West, 9th Floor Cleveland, Ohio (216) (216) (Fax) Sup. Ct. Reg. No ben lishn,englishlaw.conr AttoYney for Appellant, Gregory D. Einmons -11-

14 CERTIFICATE OF SERVICE I hereby certify that a true and complete copy of Gregory D. Emmons' Memorandum in Support of Jurisdiction was served by first class U.S. Mail, postage prepaid, upon Andrew N. Bush, Esdo, Assistant Director of Law, 1213 East Main Street Ashland, Ohio on this tild7ay of February 2015 NGLISH LAW OFFICES OF BRENT L. ENGLISH Attorney fos Appellant, Gregory D. Eannzons -12-

15 APPENDIX

16 FILED IN COURT OF APPEALS IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT 2014 D EC 3 I AM 9: 49 ANNETTE SHAW CLERk, nf "OU T STATE OF. OHIO ASHLAND. QH10Q ` Plaintiff-Appellee JUDGMENT ENTRY GREGORY D. EMMONS Defendant-Appellant CASE NO. 14-COA-016 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Ashland Municipal Court, Ashland County, Ohio is hereby affirmed. Costs to appellant. HON. W. SCOI-f GWIN -vs- -14-

17 ..^--r.- -y-^-^ i ^7 nlt!?r^t ^^i 5 l.. ', el1lili;:.'.! ia'^^ APPEALS e STATE OF OHIO COURT OF APPEALS ASHLAND COUNTY, OHIO 9014 DEC 3 1 AM g: 4 9 FIFTH APPELLATE DISTRICT AiwIN i~i"i i SHA W JUDGES: CLERK' OF COURTS Hon. William B. HotfmanAf^'^.fi,4l? OHIO Hon. W. Scott Gwin, J. Plaintiff-Appellee : Hon. John W. Wise, J. GREGORY D. EMMONS Defendant-Appellant Case No. 14-COA-016 OPINION CHARACTER OF PROCEEDING: JUDGMENT: Criminal appeal from the Ashland Municipal Court, Case No. 13-TRC-06665ABC Affirmed DATE OF JUDGMENT ENTRY: APPEARANCES: For Plaintiff-Appellee ANDREW BUSH Assistant Law Director 1213 E. Main Street Ashland, OH For Defendant-Appellant BRENT ENGLISH The 820 Building 820 Superior Avenue West, 9th Floor Cleveland, OH vs- -15-

18 --:.\ a Ashland County, Case No. 14-COA :1. 2 Gwin, J. { 1} Defendant-appeiiant Gregory D. Emmons j"emmons"j appeals his conviction and sentence in the Ashland County Municipal Court on one count of OVI "prohibited level" in violation of R.C (A)(1)(d). Plaintiff-appellee is the State of Ohio. Facts and Procedural Histoty { 2} Sergeant Brad Bishop of the Ashland Post of the Ohio State Highway Patrol testified as the sole witness for the state. Emmons presented no evidence or witnesses beyond cross-examination of Sgt. Bishop. Sgt Bishop's dash camera tape for the encounter was 'adrnitted- by the state. {13} Sgt. Bishop testified that he is a 15-year veteran of the Ohio State Highway Patrol. Sgt. Bishop testified that on September 2, 2013, at roughly 8:50 a.m., he first noticed Ernmons' vehicle traveling south on State Route 60 just north of the Village of Savannah. Sgt. Bishop was northbound on the same roadway. He visually estimated Emmons' vehicle to be traveling at 65 m.p.h. in the 55 m.p.h. zone north of the village. Sgt. Bishop's vehicle was equipped with a Python II radar device, -which he activated and used to confirm Emmons' speed at 64 m.p.h. (IT. at 11). Sgt. Bishop noted that Emmons'' vehicle passed the posted 35 m.p.h. sign at 48 m.p.h.. and continued to slow down to 35 m.p.h. (IT. at 26-27). Sgt. Bishop then turned around and got-behind Emmons' vehicle. He followed for approximately one-half mile before pulling him over near the intersection with State Route 302. Prior to making the traffic stop, Sgt. Bishop also noticed Emmons' registration was expired. No bad driving other than the speeding was observed. -16-

19 }, =.^ r.,.. Ashland County, Case No. 14-COA {1[4} Upon approaching the vehicle, Sgt. Bishop detected a slight to moderate order of an alcoholic beverage. Emmons was wearing sunglasses which Sgt. Bishop found "kind of odd" because it was a relatively overcast morning. (IT. at 29). As Emmons reached for documents in his glove box, Sgt. Bishop said he saw, through the side of Emmons' glasses, that Emmons' eyes were "very bloodshot." (Id.) On crossexamination, he claimed Emmons' eyes were both "glassy and bloodshot." (2T at 13-14). - { 5} Once out of the vehicle, Emmons was asked how much alcohol he had consumed, and Emmons admitted drinking six beers, with the last one being sometime around 2:00 a.m. that morning. { 6} Sgt. Bishop asked Emmons to step out of the vehicle for standardized field sobriety tests ["SFST's"], including the. horizontal gaze nystagmus test ["HGN"], the "walk and turn divided attention skills test" ["WAT"]," and the "one-leg stand" ["OLS"]. {1[7} Emmons made an improper turn and lost balance while turning on the WAT, which the Officer recorded as one clue. No clues were observed on OLS. Sgt. Bishop observed six of six clues on the HGN test. { S} Based on his personal observations of Emmons, Emmons' admission of consuming six beers, and Emmons' performance' on the SFST's, Sgt. Bishop formed the opinion that Emmons was under the influence of alcohol and placed him under arrest. Emmons was then given Miranda warnings. No incriminating statements were made subsequent to Emmons being taken into custody. He was transported to the Ashland Patrol Post. Sgt. Bishop read the BMV 2255 Form to Emmons, who indicated he understood. Emmons consented to a BAC Test, which was conducted by the Sgt. -17-

20 Ashland County, Case No. 14-COA Bishop at 9:51 a.m. Emmons - blew a.'!16 and was subsequently charged with Operating a Vehicle While Under the Influence of Alcohol. {lf9} Emmons filed a motion to suppress. Emmons contended tha# all evidence obtained, including his statements and the results of SFST's and BAC tests should be suppressed based on several distinct theories. Emmons alleged that the officer involved lacked justification to stop him, and submits that all evidence flowing from the stop should be suppressed. Further, Emmons alleged that Sgt. Bishop lacked probable cause to arrest him for OVI subsequent to the stop, due in part to an alleged failure to perform SFST's in conformity with the'standards promulgated by the National Highway Traffic Safety -Administration ["NHTSA"]. Emmons - also asserted that certain incriminating stafiements he made should be suppressed based on an alleged failure to give Miranda warnings. Finally, Emmons maintained that the results of the BAC Datamaster evaluation of Emmons' breath should be suppressed for a long list of alleged reasons.4 The Trial court's decision. {110} By. Judgment Entry filed March 21, 2014, the trial court overruled Emmons' motion to suppress. { 11} The trial court determined that the stop of Emmons vehicle was proper, Speeding and Driving on an Expired Registration are both minor misdemeanor violations of Title 45 of the Revised Code. Sgt. Bishop testified convin'cingly that [Emmons] was speeding and that his registration was expired. The Court found him credible, and no evidence to the 1 On appeal, Emmons has abandoned all of the claims. His sole assignment of error centers exclusively on probable cause to arrest based upon Sgt. Bishop's lack of substantial compliance in the performance of the SFST's. -18-

21 6, \ f ^s ` /^+,., t! ^ Ashland County, Case No. 14-COA contrary was presented. The Court, therefore, finds that Sgt. Bishop did in fact have reasonable suspicion that [Emmons] committed an offense, and that said suspicion was based on articulable observed facts. {1j12} Turning to the issue of probable cause to arrest for OVI, the trial court observed, In the present case, [Emmons] does not allege a lack of substantial compliance with the applicable regulations with respect to the Walk and Turn Test and the One-Legged Stand Test. However, [Emmons] takes issue with the manner in which Sgt. Bishop conducted the HGN. [Emmons'] objectians are confined to the time which Sgt. "Bishop took to move, and hold, the stylus during each of the three phases of the HGN. With respect to the "Lack of Smooth Pursuit [sic.] portion, [Emmons] contends that the stylus was moved too quickly. Sgt. Bishop conceded that he was "not precise" in taking two seconds to move the pen each direction. The N.H.T.S.A: Manual requires that it should take approximately 16 seconds to test both eyes for lack of smooth pursuit. The Court finds, based upon the testimony and the Officer's dash cam tape, which was admitted into evidence, that Sgt. Bishop completed his evaluation of both eyes for smooth pursuit in a total of 14 seconds. With respect to the "Maximum Deviation" portion of the HGN, [Emmons] asserts that the Officer erred by holding the pen at maximum deviation for less than the minimum 4 seconds required by the manual. [Emmons] puts the timing at 3 seconds on three of the subtests and 2 seconds on the fourth. -19-

22 r Ashland County, Case No. 14-COA This position is based in part on a mathematical calculation, as it is impossible in the Court's view to tell from the video precisely how long the pen was at maximum deviation and how long it spent moving from eye to eye. [Emmons] estimates how much time it would take to move the pen and subtracts that time from the total. It is clear to the Court that the entire Maximum Deviation portion took 23 seconds, more than enough time for the pen to have been held at maximum deviation for the minimum 4 seconds for each eye. Further, Sgt. Bishop testified that he felt he held it there for approximately 4 seconds based on his count. With respect to the "Onset Prior to 45 Degrees" portion of the HGN, [Emmons] claims Sgt. Bishop moved the pen too slowly. [Emmons] asserts that Sgt. Bishop took at least 7 seconds to reach 45 for each eye, as opposed to the approximately 4 seconds set forth in the manual. Further, [Emmons] notes that the Sargent [sic.] did not specifically testify that he watched to make sure [Emmons'] eyes kept jerking after the pen stopped. With respect to all of [Emmons'] concerns regarding the HGN, the Court would note that Sgt. Bishop testified that he had been trained to perform all the subtests in conformity with the current edition of the NHTSA Manual. He demonstrated familiarity with all the requirements of the Manual as they pertained to each subtest within the HGN. He testified that he performed all portions of the HGN in conformity with his training and the NHTSA Manual. The Court found that testimony credible and to be supported by the video and audio recbrdings admitted into evidence. -20-

23 ` ^'^,\ '^.`\ ^ i Ashland County, Case No. 14-COA license was suspended for a period of one year. Assignments of Error I {114} Emmons raises one assignment of error, The time used by an Officer for moving the stylus during the various stages of the HGN has been the source of a considerable amount of litigation in Ohio. The NHTSA manual, adopted by the Ohio Department of Health, specifically sets forth approximate time frames for each of the numerous individual movements. These are substantive requirements that are central to the scientific validity of the test, as contrasted with mere technical - requirements. However, the manual sets forth the time requirements in language that makes it clear that exactitude is not required. The stylus is to take "approximately" four seconds to reach the shoulder. -lt is to be held at maximum deviafion- for "a minimum of -four seconds." In the present case, the Court finds that Sgt, Bishop did in fact conduct all portions of the HGN in substantial compliance with the applicable regulations and that any deviations were minor and inconsequential. Middleburg Heights v. Gettings, (8th Dist.) 2013-Ohio { 13} Subsequently Emmons entered a plea of no contest to one count OVI "prohibited level" in violation of R.C (A)(1)(d). The remaining charges were dismissed by the state. Emmons was sentenced to thirty days in jail, all suspended, one-year probation, and a $ fine plus court costs. In addition, Emmons' driver's -21-

24 . -^... Ashland County, Case No. 14-COA { 15} "f. THE TRIAL COURT ERRED BY DENYING APPELLANT'S MOTION TO SUPPRESS." Analysis { 16} Appellate review of a motion to suppress presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, , 2003-Ohio-5372, 797 N.E.2d 71, 118. When ruling on a motion to suppress, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and to evaluate witness credibility.. See State v. Dunlap, 73 Ohio St.3d 308,314, 1995-Ohio-243, 652 N.E.2d 988; State v. Fanning, I Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a reviewing court must defer to. the trial court's factuaf findings if competent, credible evidence exists to support those findings. See Burnside, supra; Dunlap, supra; State v. Long, 127 Ohio App.3d 328, 332, 713 N.E.2d 1(4th Dist.1998); State v.medcaff, 111 Ohio App.3d 142, 675 N.E.2d (4^h Dist.1996). However, once this Court has accepted those facts as true, it must independently determine as a maffer of law whether the trial court met the applicable legal standard. See Bumside, supra, citing State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539(0 Dist 1997); See, generally, United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740(2002); Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911(1996). That is, the application of the law to the trial court's findings of fact is subject to a de novo standard of review Ornelas, supra..moreover, due weight should be given "to inferences drawn from those facts by resident judges and local law enforcement officers." Ornelas, supra at 698, 116 S.Ct. at

25 rr... Ashland County, Case No. 14-COA The Traffic Stop { z7} The Ohio Supreme Court has emphasized that probable cause is not required to make a traffic stop; rather the standard is reasonable and articulable suspicion. State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4358, 894 N.E.2d 1204, 23. Further, neither the United States Supreme Court nor the Ohio Supreme Court considered the severity of the offense as a factor in determining whether the law enforcement official had a reasonable, articulable suspicion to stop a motorist. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89(1996); City of Dayton v. Erickson, 76 Ohio St.3d 3, 665 N.E.2d 1091(1996). { 18} lh the case at bar, the record establishes Emmons was speeding and had an expired registration sticker on his license plate. The judge is in the best position to determine the credibility of witnesses, and his conclusion in this case is supported by competent facts. See State v. Burnside, 100 Ohio St.3d 152, , 797 N.E.2d 71, 74(2003). The fundamental rule that weight of evidence and credibility of witnesses are primarily for the trier of fact applies to suppression hearings as well as trials. State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d-583, 584(1982). The trooper's testimony, which is supported by the video evidence admitted during the suppression hearing, represents competent, credible evidence that Emmons was -speeding and 'had an expired registration sticker on his license plafe. Therefore, the factual finding of the trial court that Emmons was speeding and had an expired registration sticker on his license plate is not clearly erroneous. {119} We accept the trial court's conclusion that Emmons' violation of the traffic laws gave Sgt, Bishop reasonable suspicion to stop Emmons' vehicle because the -23-

26 Ashland County, Case No. 14-COA factual findings made by the trial court are supported by competent and credible evidence. Thus, the trial court did not err when it denied Emmons' motion to suppress on the basis that the initial stop of his vehicle was valid. State v. Busse, 5th Dist. No. 06 CA 65, 2006-Ohio-7047, 20. The SFST's and Probable Cause to Arrest {1[20} Emmons argues that the trial court erred in admitting the results of the HGN field sobriety test because it was not conducted in substantial compliance with the NHTSA guidelines. He further contends that the trooper lacked sufficient probable cause to arrest him for OVI { 21} 1n- State v. Boczar, 113 Ohio St.3d*148, 2007-Ohio-1251, 863-N.E.2d 155, the Court held, "... HGN test results are admissible in Ohio without expert testimony so long as the proper foundation has been shown both as to the administering officer's training and ability to administer the test and as to the actual technique used by the officer in administering the test." id. at 27. In accordance with R.C (D)(4)(b) HGN test results are admissible when the test is administered in substantial compliance with testing standards. Boczar, at 28. { 22} The timing required to complete the various elements with respect tb both eyes of the HGN test as set forth in the NHTSA manual are approximate. State v. Lominack, 111, 5th Dist. Stark No. 2012CA00213, 2013-Ohio-2678, 31. Further, the standard for admissibility is substantial not strict compliance. Id. {1(23} While field sobriety tests must be administered in substantial compliance with standardized procedures, probable cause to arrest does not necessarily have to be based, in whole or in part, upon a suspect's poor performance on one or more of these -24-

27 Ashland County, Case No. 14-COA-016 tests. The totality of the facts and circumstances can support a finding of probable cause to arrest even where no field sobriety tests were administered. State v. Homan, 89 Ohio St.3d 421, 732 N.E.2d 952(2000), superseded by statute on other grounds as stated in State v. Boczar, 113 Ohio St.3d 148, 863 N.E.2d 155, 2007-Ohio In Homan, the facts which supported a finding of probable cause were: red and glassy eyes, breath which smelled of alcohol, erratic driving and an admission that the suspect had consumed alcohol. {1[24} The case law is in agreement that probable cause to arrest may exist, even without field sobriety tests results, if supported by such factors as: evidence that the defendant caused an aufomobile accident; a strong odor of alcohol emanating from the defendant; an admission by the defendant that he or she was recently drinking alcohol; and other indicia of intoxication, such as red eyes, slurred speech, and difficulty walking. Oregon v. Szakovits, 32 Ohio St.2d 271, 291 N.E.2d 742(1972); Fairfield v. Regner, 23 Ohio App.3d 79, 84, 491 N:E.2d 333(12th Dist. 1985); State v. Bernard, 20 Ohio App.3d 375, 376, 485 N.E.2d 783(9th Dist. 1985); Westlake v. Vilfroy, 11 Ohio App.3d 26, 27, 462 N.E.2d 1241(8th Dist. 1983); State v. Judy, 5th Dist. No CAC , 2008-Ohio-4520, ' 27. Further, the Ohio Supreme Court has made clear that the officer may testify regarding observations made during a defendant's performance of standardized field sobriety tests even absent proof of "strict compliance." State v. Schmitt, 101 Ohio St.3d 79, 2004-Ohio-37, 801 N.E.2d 446, (2004), 15. { 25} In the case at bar, the probable cause to arrest Emmons for OVI was supported by the trooper's observation of glassy eyes, odor f alcohol, admission that he had been drinking, and speeding. -25-

28 Ashland County, Case No. 14-COA { 26} Accordingly, the totality of the evidence, even excluding the HGN test, gave rise to probable cause to "arrest for OV(. Hornan at 427, 732 N.E.2d 952. As such, we find it was not error for the trial court to determine there was probable cause to support Emmons' arrest for OVI. { 27} We further note that Emmons entered a plea to a "per se" violation under R.C (A)(1)(d). In State v. Lucas, the Supreme Court observed, The per se offenses define "the point the legislature has determined an individual cannot drive without posing a substantial danger, not only to himself, but to others." State v. Tanner (1984), 15 Ohio St.3d 1, 6, 15 OBR 1, 5, 472 N.E.2d 689, 693: In determining whether one of-these per se offenses was committed by the defendant, the trier of fact is not required to find that the defendant operated a vehicle while under the influence of alcohol or drugs, but only that the defendant operated a vehicle within the state and that the defendant`s chemical test reading was at the proscribed level. The critical issue at trial is the accuracy of the test, not the behavior of the accused. See Katz & Sweeney, Ohio's New Drunk Driving Law: A Halfhearted Experiment in Deterrence ( ), 34 Case W. Res. L. Rev. 239, Ohio St.3d 100, 103, 532 N.E.2d 130(1988). Emmons has not challenged the accuracy of the BAC test in this appeal. The HGN test results are not relevant to a determination of whether 1). Emmons was operating a vehicle within this state and 2). whether at the time he had a concentration of eight-hundredths:of one gram or more but less than seventeen-hundredths of one gram by weight of alcohol per two hundred ten -26-

29 ..., _.. Ashland County, Case No. 14-COA liters of his breath. In other word, the SFST's are not necessary to the determination of guilt or innocence for a "per se "offense. {128} We additionally note that the NHTSA manual itself contains the following caveat: - Even when administered under less than ideal conditions, they jsfst'sj will generally serve as valid and useful indicators of impairment. Slight variations from the ideal, i.e., the inability to find a perfectly smooth surface at roadside, may have some affect on the evidentiary weight given the results. However, this does not necessarily make the SFSTs invalid. National Highway Traffic Safety -Admfnistratiori, DWI (Driving While -/ntoxicated) Detection & Standardized Field Sobriety Testing, Student Manual at Preface (2006). [Admitfed as Defendant's Exhibit B]. The NHTSA manual further notes with respect to the HGN test, Based on the original research, if you observe four or more clues it is likely that the suspect's BAC is above Using this criterion, you will be able to classify about 77% of your suspects accurately. Id. at VIII-8. We note in the case at bar Sgt. Bishop found-six clues. Further, we cannot help but observe Emmons' BAC registered as a It would appear to this Court then that Sgt. Bishop's performance of the HGN in the case at bar accurately predicted that Emmons BAC would be above 0.08, which is the legal limit in Ohio. Thus, any deviations in Sgt. Bishop's administration of the HGN test to Emmons were de minimis, as the trial court fourid. Therefore, Sgt. Bishop had probable cause to arrest Emmons for OVI. -27-

30 ^^ '^. Ashland County, CaseNo. 14-COA { 29} For all the foregoing reasons, Emmons' sole assignment of error is overruled in its entirety. The judgment of the Ashland Municipal Court, Ashland County, Ohio is hereby affirmed. By Gwin, J., and Wise, J., concur; Hoffman, P.J., concurs separately N. W. SCOTT GW(N. --- WSG:clw

31 Ashland County, CaseNo. '(4-COA Hoffman, P.J., concurring {130} I concur in the majority's analysis and decision regarding the validity of the initial stop of Appellant. I further concur in the majority's analysis and decision probable cause to arrest for OMVI existed independent of the results of the field sobriety tests. {131} While I would find the HGN tests were not done in substantial compliance with the NHTSA manual and should have been suppressed, I find such to be harmless error given the fact Appellant was convicted of the "per se" offense. Accordingly, I join the majority's disposition of Appellant's assignment of error and decision to affirm the trial court's judgment. 0^^ HON. WILLIAM B. H AN -29-